Unpacking the Supreme Court's Clean Power Plan Memos: Legal Context and Implications

Background: The Clean Power Plan and the EPA’s Regulatory Strategy

The release of internal Supreme Court memos last weekend has reignited discussions about the Clean Power Plan and its legal challenges. However, much of the commentary has failed to contextualize the substance of these documents. As an expert in administrative and environmental law, it is critical to examine the circumstances surrounding the Court’s review of these applications.

After failing to secure climate change legislation, the Obama Administration pursued an aggressive strategy to reinterpret the Clean Air Act to regulate greenhouse gas emissions. One of its most ambitious efforts was the Timing and Tailoring Rules, which sought to:

• Rewrite statutory emission thresholds.
• Assert immunity from judicial review.

While these rules were upheld in the D.C. Circuit, the Supreme Court rejected most of the EPA’s arguments in UARG v. EPA. The following year, the Court struck down the EPA’s mercury emission rules in Michigan v. EPA, yet EPA officials claimed the decision was irrelevant because the mere threat of regulation had already forced compliance.

The Chief Justice noted in one of the released memos that EPA officials boasted about imposing billions in compliance costs through the threat of an unlawful rule. Further, the Chief observed that EPA officials indicated they would repeat this tactic with the Clean Power Plan.

Contrary to some claims, these points were explicitly made in the Court filings, which are publicly available.

The Unprecedented Nature of the Stay Requests

While the stay requests to the Supreme Court were unprecedented, the surrounding context was equally extraordinary. The Administrative Procedure Act (APA) and Clean Air Act both allow for stays of newly finalized rules. Under the APA, major rules cannot take effect for at least 60 days after publication in the Federal Register. Section 705 further permits courts to postpone regulations to preserve the status quo during review.

The petitioners—representing 27 states and numerous business groups, trade associations, and unions—filed their stay requests within two weeks of the rule’s publication. This action sought to prevent costly precautionary compliance measures while the legal challenge proceeded.

This scenario differs significantly from other executive branch challenges, where rules often take effect before courts can review them.

Additional Context from SCOTUSBlog

Writing for SCOTUSBlog, Taraleigh Davis provides further insight into the memos, clarifying what they reveal—and what they do not—based on her analysis of how the Court handles emergency stay requests.